Thousands of doctors were stripped of their powers to issue drugs when a Pretoria judge dismissed a constitutional challenge on Friday to regulations obliging them to acquire special dispensing licences.
The regulations come into effect at midnight.
Less than 2 000 of an estimated 8 000 dispensing doctors in the country have obtained the required licence, Dr Mphata Norman Mabasa, one of the applicants, said outside the courtroom.
”We have a crisis here.”
Department of Health Deputy Director General Dr Kamy Chetty could not confirm the number of licences issued, but said it is ”not high”.
Doctors without licenses will have to stop dispensing medicine from Saturday, or run foul of the law. Until they have completed the required course and obtained their licences, these doctors will be limited to writing out prescriptions, Chetty said.
Mabasa said an appeal against the court’s judgement is being considered.
”We will talk to our legal advisers today [Friday], study the judgement, and make a decision by the end of the weekend as to whether an appeal would be a viable option.”
Should an appeal be pursued, the process could be initiated as soon as next Monday, he added.
The Pretoria High Court dismissed with costs an application by Mabasa, the Affordable Medicines Trust and the National Convention on Dispensing.
Acting Judge Johann Kruger rejected their contention that the regulations infringe on their constitutionally protected rights and those of their patients.
He also dismissed arguments that Minister of Health Manto Tshabalala-Msimang exceeded her powers in passing the regulations, and that the new licensing provisions are excessive and not necessary to achieve the government’s stated goal of making safe medicines more accessible.
The applicants disputed the validity of the regulations as undemocratic, arbitrary and draconian — arguing doctors have an historic and inherent right to dispense medicine.
Doctors are particularly concerned that a licence will be coupled to particular premises.
But the judge dismissed all the objections raised.
It is not for a court to apply value judgements regarding government policy, he said.
The formulation of such policy is subject to public scrutiny and input, and the end product susceptible to public assessment. Government officials may be held responsible for their policies by the public.
”Accountability, in this sense, forms part of the political process and it is not for the courts to interfere with policy matters under the guise of accountability,” Kruger said in a written judgement.
Assuming that medical practitioners have a right to dispense medicines, it does not follow that the provisions limit this right to the extent of infringing on any constitutional rights, he added.
”In my view, the impugned provisions do no more than regulate the practise of dispensing and do not infringe the medical practitioner’s rights to choose to practise as a medical practitioner or to choose to dispense medicines as part of his or her practice.”
The judge dismissed an argument that the regulations infringe on a patient’s right to choose a particular practitioner.
The fact that some patients may suffer inconveniences does not mean their constitutional rights are impaired.
”Indeed, to hold thus would be far-fetched and would be to extend the boundaries of patients’ rights to an unrealistic Utopia,” the judge ruled.
The deadline for the regulations to come into operation, initially May 2 and then June 2, was extended to Friday pending the judgement.
The Department of Health described the ruling as a victory for the government’s efforts to transform health services and ensure patient safety.
”It is a victory for patients and the general public that deserve quality health services,” it said in a statement.
The department advised patients to check whether their doctor is licensed to dispense before accepting medication.
”We also appeal to doctors who want to dispense to complete the dispensing course. The department commits itself to processing applications expeditiously.” — Sapa